Tag Archives: Brand Management and Branding

Emerson InSinkErator trash compactors will mangle your hand if you stick it in one of them.

Originally posted 2006-10-19 13:44:39. Republished by Blog Post Promoter

Sounds like a reasonable assertion, right? The same thing will happen if you stick your hand into an Acme trash compactor. It’s just bad practice. Who could be offended by that?

Insinkerator

Emerson Electic could (links added):

COMPANY SUES NBC FOR DEFAMATION
Emerson Electric is suing NBC over a scene in their new series “Heroes” that featured the company’s garbage disposal, according to an CNN Money article. The first episode showed one of the characters (whose superpowers include indestructibility) stuffing her hand down the disposal and getting it mangled, although within a few seconds her hand was fully healed.

However, Emerson, makers of the “InSinkErator,” believes the scene gratuitously showed their product as being dangerous. Their suit alleges that the program “implies an incorrect and dangerous design for a food waste disposer,” and “casts the disposer in an unsavory light, irreparably tarnishing the product.” They are reportedly asking the court to order NBC to “remove Emerson trademarks from future broadcasts of the show and also seek damages suffered from NBC’s acts of “unfair competition, trademark infringement, and trademark dilution.”

A spokesman for Emerson pointed out data showing that not only are you 10 times more likely to suffer harm from your dishwasher, but any injuries suffered in the event of a disposal accident would not be nearly as severe as those shown in the TV episode.

You can’t say “unbelievable” any more, because nothing is. But on the face of it, this sounds mighty flimsy — “trademark use,” anyone? — and an abuse of the Lanham Act that may be sanctionable. Decide for yourself and let me know what you think: Here’s the amended complaint.

The suit was filed in St. Louis, where Emerson is based.

UPDATE:  Stupid claim settled.  Of course.

The color purple

Originally posted 2008-04-14 08:27:01. Republished by Blog Post Promoter

Cadbury-PurpleCadbury is purple in the face over not being able to secure the wordlwide exclusive rights to the use of the color purple in association with the sale of chocolate — even as against an Australian company that’s been using the two together for almost a century:

Cadbury tells me it is “vigorously appealing” against a judgment over the use of purple. In a case that it has pursued for five years, Cadbury has tried and failed to stop Darrell Lea, an Australian chocolate manufacturer, from using the colour.

Despite the fact that Darrell Lea was established in 1927 and has been using purple for most of its existence, Cadbury insists that it has no right to the colour. Cadbury has registered one shade of purple in relation to block chocolate in tablet form in Britain but it has not been as successful elsewhere.

Purple, actually, may be the oldest legally-protected “trademark” color, of sorts. The color was, at certain times during ancient times and antiquity, permitted to be worn only by the nobility. To which, in the chocolate sense, Cadbury may or may not have a claim. I do like the stuff, and perhaps it is among the elite in the chocolate hierarchy. Certainly compared to virtually anything else the English make it is uniquely edible — but regal?

UPDATE:  Cadbury’s claim melts in its hands, not just in our mouths.

UPDATE II:  Settled, dismissed, whatever. It’s all over but the calories!  Via @IPThinkTank.

UPDATE III: Yes.  But no.  I mean yes.

Trademark McCrisis? (Or, McArabia)

Originally posted 2006-02-15 12:28:00. Republished by Blog Post Promoter

Angry at McDonaldsIs this good for McDonalds’ branding (click here for my personal favorite URL)?

I’m not so sure it’s that bad. Having your trademark publicly desecrated by the perpetually unhappy — the people, as Jonathan Rosenblum puts it, “for whom life itself is an insult” — because your mark is the happy symbol of American convenience, hospitality, tasty enjoyment and, well, let’s say free enterprise — isn’t the worst thing that can happen. (Via Instapundit.)

McDonald's AbroadBy the way, notice how the “angry” guy’s friends are cracking up as he does his performance for the cameras. Five will get you ten that he’s doing this to impress a girl.

Chicks love this stuff.

Yes, this cross-cultural business is confusing, isn’t it?

Dimming star?

Originally posted 2008-01-31 11:43:10. Republished by Blog Post Promoter

Ann Althouse:

Starbucks used to seem like a luxury brand, and now it feels like a fallback when you can’t get to the real thing.

Ouch. (Via Instapundit.) Ann sees it happening in the automated coffee machines in the shops. But could it have to do with branding incoherence typified by this?
Cobranding hell

Lug me tender

Originally posted 2010-02-24 23:56:49. Republished by Blog Post Promoter

Doctors (J.D.) Detroit?

Should a law school be tendering seven figures of money to a minor league baseball team for stadium naming rights?  That is certainly a novel question.

I tackled the whole concept of branding, memory and stadium names in the context of the Mets’ Citi Field deal a few years ago–but a bank is one thing.  Heck, these guys know how to make record profits just by threatening to go out of business!  So who am I to say?

But a law school?  That’s something I know a little about!

And… with all due respect… should the law school that does that be Thomas M. Cooley Law School in Michigan?  Well, perhaps if it would be any school it would be Cooley, which has always marched to the sound of a different drummer.

A very, very different drummer.  I once wrote an article, or perhaps just a short roundup-type item, about Cooley when I was contributing editor for Student Lawyer magazine, but I can’t get my hands on the cuneiform tablets just now.  I do remember that it was the school that actually did things “the old fashioned way”–they actually admitted two or three times the number of students who were really going to make it through law school, and they actually kicked out people who couldn’t cut it.  So, yes, they have always been very funky, original and daring over there.

And in that context, now let’s see the Wall Street Journal Law Blog and the stadium story: Read More…

Best of 2009: “While my guitar gently weeps”

fender-bodies

Fender bodies: Nice, but nothing special

This was first posted on March 31, 2009.

One of the first posts on LIKELIHOOD OF CONFUSION® was about Gibson Guitar Corp. v. Paul Reed Smith Guitars, LP, 70 UPSQ2d 1911 (M.D. Tenn. 2004), and the question of whether “only a Gibson guitar can make a Gibson-looking guitar.” Not long after that decision came down, Gibson’s rival Fender filed for what it now evidently believed it had a shot at getting — a trademark registration for guitar shapes.

Fender had an uphill battle, though. Not only would it have to satisfy the post-TrafFix Devices standard for protection of a product configuration as a trademark, namely showing that the feature claimed as a trademark is not functional. In addition, because in the case of a musical instrument the product is the packaging, Fender would

10 Years of LIKELIHOOD OF CONFUSION®

10 Years of LIKELIHOOD OF CONFUSION®

have to prove “acquired distinctiveness” for its would-be trademark-protected products, such that “the primary significance of the product configuration in the minds of consumers is not the product but the source of that product.” (Remember that.)

Obviously, however, Fender was emboldened by the Gibson decision. Never mind that in September, 2005, the Sixth Circuit reversed the Middle District of Tennessee ruling in Gibson, in an opinion which rejected a unique theory of LIKELIHOOD OF CONFUSION. It was a variation of downstream or post-sale likelihood of confusion divided by “initial-interest confusion,” a combination the court termed “smoky-bar confusion”: Read More…

Best of 2007: Trademark rights in interdigitization

Originally posted 2007-05-15 21:32:04. Republished by Blog Post Promoter

Praying Hands

Thou, Rock

Nick Daly drops me a note to the effect that one Jay-Z, gazillionaire rhyming scatologist, has been sued by a professional perspirer and leaping stage goon called Diamond Dallas Page — ach! my kingdom for a stage name! — for the former’s “Roc-A-Fella Hand Gesture,” also known as the “Diamond Cutter” hand gesture. Evidently Mr. Z uses the former, Mr. Page the latter of these nicknames for the clever manipulation of the human carpal, metacarpal and phalange bones in a distinctive diamond-shaped pattern in association with the services provided by the respective performers.

10 Years of LIKELIHOOD OF CONFUSION®

10 Years of LIKELIHOOD OF CONFUSION®

Now, Roc-a-Fella is a record company specializing in rhythmic spoken-word obscenity-laced performance art which generates (1) some light, if you will, allowing one to peer into the dimmer recesses of the heart of urban America’s cultural darkness profundity, plus (2) much heat as regards the controversial word choice typically employed by its practitioners as well as the ribald subject matter of the works, in addition to (3) immense dump trucks full of cash.

You may perhaps, in a merry mood, “Rock a fellow” — “rock” him, in this sense meaning to entertain him or absorb his attentions by use of contemporary upbeat rock and roll music or its derivaties — or as we northeastern urbanites might say, you might rock “a fella”; hence the name of the company. And it is hard not to suspect an allusion, based both on ironic association considering the countercultural nature of the works as well as with vast hordes of currency, to the name Rockefeller, the billionaire dynasty that, as is well known, controls everything, and whose name is arguably a “trademark” for immense wealth and power.  (UPDATE:  Jay-Z, in contrast, evidently cannot quite as readily as the Old Man could rock every fella as he might like to.) Read More…

Best of 2007: That’s a wrap

Published on April 16, 2007.

subway123Forget about the IP rights in those MTA symbols — you can probably use them however you want, now. (Remember to read my disclaimer on the right, though!)

10 Years of LIKELIHOOD OF CONFUSION®

10 Years of LIKELIHOOD OF CONFUSION®

Almost two years ago I expressed my skepticism about the (New York) Metropolitan Transportation Authority’s aggressive IP enforcement program focusing on the iconic train symbols of the New York City subway system.  [That post ended as follows]:

I also had a chance to reconsider the issue, and decided that — absent the establishment by Congress of some sort of “public trust trademark” amendment to the Lanham Act — these symbols are about as good a source indicator for a service as you can ask for. A D train goes on the D route on the D schedule. The E train, the F, the 1 the 2 and the 3 — completely arbitrary, yet packed with trademark goodwill. Very enforceable! That doesn’t mean there can’t be fair use, etc. — but prima facie, these would seem to be very good trademarks that designate very specific services boasting particular qualities.

Not any more: Read More…

Best of 2006: Trademark City

Originally posted 2006-11-15 01:03:47. Republished by Blog Post Promoter

Trademark City

The Strategic Name Development blog reports that the naming rights to the New York Mets’ new baseball stadium have been sold to Citigroup. The stadium will be called “CitiField” and the privilege of that garish plug will cost Citigroup $20 million a year, or the cost of a grade-A free agent. The blog post has a great rundown on alternative “Citi” names that were considered, as well as a roundup of back-page and other learned reactions.

10 Years of LIKELIHOOD OF CONFUSION®

10 Years of LIKELIHOOD OF CONFUSION®

CitiGroup is itself a metropolis of trademark issues. The CitiGroup Center, which is right out the window of my office (over my shoulder in the picture above left), is a landmark building, i.e., a de facto trademark for the company on the New York skyline, of which it is one of the leading and tallest lights. In the picture below, taken from the east, you can see how its distinctive angles tower jauntily over the lovable rust-colored “lipstick”-shaped [former] LIKELIHOOD OF CONFUSION Building at 885 Third Avenue (below). But of course, buildings can’t really be trademarks, can they? If they can be, the CitiGroup Center is. Read More…

“Private Label Store Brand OTC Naming Architecture”!

Originally posted 2009-11-17 12:57:31. Republished by Blog Post Promoter

Now that’s a mouthful, eh?  Yes, that is one ba-a-a-ad phrase to have handy for your next trademarks-and-branding over pigs-in-blankets soirée!

Oh… you don’t… know what private label store branding OTC architecture means?  (Cough.)  Excuse me, um, I think I just saw my friend come in — hey, look, they brought out new canapés! — catch you later, okay?

Duets Blog logoYeah.  I just read itfor the first time, too,  via this (warning:  Multilayered social networking ahead) LinkedIn discussion in the International Trademark Association group, where I wasn’t the only dummy who had never heard of it — but now I’m glad I did!  It’s explained in this post at The Duets Blog which actually deals with one of my favorite topics, “store brands” or private labels.

Well, I always wanted to know more about the issues involved in private branding, which bring out the best in me — and now I do!  Plus I know that very cool sounding phrase . . .  whatchamacallit.Mark Prus

 

Great post by Mark Prus of naming consultant NameFlash.

Wal-Mart pushed back on dubious trademark threats

Originally posted 2006-03-08 13:33:28. Republished by Blog Post Promoter

New_Walmart_Logo.svgMarketWatch reports this story about an opinonated gent who’s suing Wal-Mart for a declaratory judgment:

Smith said he was making a point by comparing the giant retail company to the Nazis by creating T-shirt designs that played off the Bentonville, Ark., firm’s familiar logo, including “I (heart) WAL*OCAUST. They have family values and their alcohol, tobacco and firearms are 20% off,” the newspaper reported.

Wal-Mart launched a legal battle by writing a cease-and-desist demand that led Smith to file suit Monday in federal court in Atlanta. Former presidential hopeful Ralph Nader’s legal aid group, Public Citizen, is helping Smith, the report said.

Smith should be ashamed of himself for comparing a damned variety store to the Third Reich. It demonstrates a real lack of moral judgment on his part.

But the stupid party here is Wal-Mart, which should get its clock cleaned and which has given a platform for publicity to a bitter, if morally blind, adversary. Whether it will in this trademark-owners-take-all environnment is, however, anyone’s guess.

UPDATE: Hm. Maybe Wal-Mart had it coming?

UPDATE: The Pierce IP News Blog has it that Wal-Mart will claim its trademark is being besmirched by Smith. In other words, its claim will probably hinge on a trademark dilution count. You know, dilution — the infringement that never has to say “I’m confused.”

M-I-C . . . see you in court!

Originally posted 2008-09-03 11:51:57. Republished by Blog Post Promoter

Could there be a mouse hole in Mickey’s larder?  The Los Angeles Times reports:

All signs pointed to a Hollywood ending with Disney and Mickey Mouse living happily ever after – at least until a grumpy former employee looked closely at fine print long forgotten in company archives. . . .

Copyright questions apply to an older incarnation, a rendition of Mickey still recognizable but slightly different. Original Mickey, the star of the first synchronized sound cartoon, “Steamboat Willie,” and other early classics, had longer arms, smaller ears and a more pointy nose. . .

The issue has been chewed over by law students as class projects and debated by professors. It produced one little-noticed law review article: A 23-page essay in a 2003 University of Virginia legal journal argued that “there are no grounds in copyright law for protecting” the Mickey of those early films.

Garsh, Mick!

Roger Schechter, a George Washington University expert on copyright, called the article’s argument “a plausible, solid, careful case.”  By contrast, a Disney lawyer once threatened the author with legal action for “slander of title” under California law. No suit was filed.